After shootings, deputies invoke right to remain silent

Monday

Apr 2, 2012 at 6:59 PM

Since August 2010, including as recently as Sunday night, six Marion County residents have been killed or wounded by sheriff's deputies.The deputy-involved shooting from Sunday is still being investigated, but in each of the others, the deputies were all cleared of wrongdoing.

By Bill ThompsonStaff writer

Since August 2010, including as recently as Sunday night, six Marion County residents have been killed or wounded by sheriff's deputies.

The deputy-involved shooting from Sunday is still being investigated, but in each of the others, the deputies were all cleared of wrongdoing.

Yet in some cases that conclusion was reached without the benefit of the deputies' input.

Public records show that investigators were stymied at times because representatives of the deputies' union sought to limit their participation in the inquiry or convinced them to not talk at all.

While sufficient information was gathered to find the deputies were justified in their actions, some observers suggest their silence in use-of-force incidents makes them more vulnerable to legal and administrative punishment.

The top lawyer for the union counters that law enforcement officers are considered suspects in such cases and that their constitutional rights, including the right to not talk to investigators, is not waived just because of their profession.

Moreover, he added, while officers must decide for themselves how to handle the union's recommendation against not offering a voluntary statement until they are certain about their actions, the decision could save them professionally and the local government financially.

Sheriff Ed Dean has a long-standing policy that the Florida Department of Law Enforcement will investigate each use-of-force case that results in a civilian being killed or injured.

Dean believes that doing so will cast an objective eye on each case.

FDLE's policies regarding other agencies' use-of-force inquiries state that the agent in charge of the investigation will conduct a briefing for key participants that incorporates witness statements, including the officer's comments, within 24 hours of the request for help.

In two of the five cases reviewed by the Star-Banner, a total of three deputies declined to discuss the events that, in separate incidents, led to one civilian being killed and another wounded.

In a third case, the deputy spoke with FDLE's investigators 13 days after a fatal shooting — and only after he overruled his representatives from the Fraternal Order of Police, or FOP, the union voted into the Sheriff's Office by the rank-and-file deputies in 2010.

One reason some deputies declined to voluntarily provide statements is related to the so-called Garrity rule, which holds that officers who are compelled by superiors to cooperate in internal investigations cannot have their testimony used against them if the inquiry leads to a criminal proceeding against them.

From the Garrity rule sprang the Police (or sometimes called Peace) Officers Bill of Rights.

Under a state law enacted in 1974, and a federal law passed later, law enforcement officers accused of misconduct have privileges unavailable to routine criminal suspects.

For example, that law says officers must be interrogated at a "reasonable hour," at their place of work and preferably when they are on duty.

All questions directed to the accused must be asked by only one interrogator, and they are advised beforehand of who is making the complaint against them, and all known evidence against them is provided to them in advance.

The questioning can only go on for a "reasonable" amount of time, with rest periods granted.

The accused cannot be addressed with offensive language, threats of disciplinary action, nor promises of rewards.

The Police Officers Bill of Rights does not preclude officers from being charged with criminal offenses, if warranted.

Tony Livoti, a Fort Lauderdale lawyer who serves as general counsel for the FOP's more than 20,000 members around Florida, said the union dispatches its lawyers and representatives in use-of-force cases to officers who have signed up for its legal defense fund, an extra benefit FOP members pay for.

The FOP's policy does call for a 72-hour cooling-off period before officers give voluntary statements in such cases.

That standard, he said, was taken from the guidelines of the International Association of Chiefs of Police and reinforced by scientific research into "critical incident amnesia," a short-term impairment of the memory caused by exposure to a traumatic, life-threatening situation.

"The research shows they don't always remember the exact details and it takes a couple nights' sleep before they fully recall the details of a specific situation," said Livoti, who has handled more than 300 officer-involved shooting cases.

In the initial stages, under a 1990 state attorney general's opinion, officers only have to submit a "required minimum" statement relating to the preservation of the crime scene, identification of suspects and witnesses, or a brief explanation to guide the investigation, Livoti said.

After the 72-hour window closes, Livoti said, it is up to individual officers to choose whether to discuss their actions.

Still, the union counsels them not to do so until their memory is sound, he added.

That's because in use-of-force cases, until it is determined otherwise, law enforcement officers remain suspects in a violent crime, he said. And their job does not require them to surrender the same constitutional guarantees provided to all Americans.

"The union doesn't want it to seem that they are not cooperating. They are," Livoti insisted.

The admonition against talking immediately, Livoti suggested, also protects the officer and the local government in the event of a future lawsuit.

Others, though, believe fuller cooperation of the front end would help all involved.

Sheriff Dean said he could not recall a deputy not rendering an account of his or her actions in a use-of-force case before the FOP was voted in.

"I believe in a case where we have called the FDLE in to assist with an investigation into the use of force, and after the Police Officer Bill of Rights has been complied with, and after a reasonable period of time has been given to the deputies to ensure they are OK, the deputies should be encouraged to give their side of the story," Dean said.

"I don't believe they should be discouraged, after a reasonable period of time, because without the officer's side there is room for misinformation" to cloud the matter, the sheriff added.

To fill in those blanks, Dean noted, prosecutors may have to convene a grand jury — an unnecessary step, he said, if prosecutors had access to all the facts up front.

Chief Assistant State Attorney Ric Ridgway said the deputies' reluctance to speak to FDLE's investigators in one of the cases has put prosecutors in an awkward position — because they shot a suspect but were also shot at, making them victims as well as witnesses.

As with any other case, Ridgway said, the decision to proceed against a deputy in such cases hinges on having all the available information.

Lacking the deputy's first-hand account "puts you at a distinct disadvantage," Ridgway said. "And that could work to the disadvantage of the deputy."

Deputy Robert Youmans, who a year ago shot and killed Craig Rust, a drunken suspect who pulled a loaded .357-caliber pistol on deputies investigating a domestic violence call, recalled that the union's lawyers pressured him to not give a statement following the shooting.

They told him he would do a "disservice" to other deputies by doing so, undermine the agency's esprit de corps and jeopardize the "fragile ground" the FOP had gained after the September 2010 election, he said.

Yet, Youmans said, what the lawyers couldn't give him was a solid reason for not cooperating — other than that they were telling him not to.